Opinion
March 27, 1950.
In an action on two policies of liability insurance, defendant The American Employers' Insurance Company appeals from an order, pursuant to rule 113 of the Rules of Civil Practice, striking out its answer and granting summary judgment to plaintiff for an amount to be ascertained on an assessment of damages. Plaintiff appeals from so much of the order as denied summary judgment against defendant The New Amsterdam Casualty Company. Plaintiff, the proprietor of a beauty parlor, was sued by a patron who was injured during the temporary absence of the operator, when the cover of a sink fell upon her face after she had been placed in a reclining position with her head over the sink in readiness for a shampoo. A policy issued by defendant The New Amsterdam Casualty Company covered the "ownership, maintenance or use" of the premises, and excluded claims for bodily injuries "due to the rendering of any professional services." The policy of defendant The American Employers' Insurance Company covered "Beauty Shop Operations", including "shampooing", and provided that the insurer would pay all sums which the insured would be obligated to pay by reason of the liability imposed upon her by law for damages suffered "by reason of or resulting from any personal or professional service or the use of any preparation or appliance in connection with the hazards stated". The policy did not cover the "use, care and maintenance of premises other than personal or professional services" included in beauty shop operations. Each of the defendants disclaimed liability and asserted that the claim was covered by the policy of the other — defendant The American Employers' Insurance Company taking that position after it had first undertaken the defense of the customer's action against plaintiff and while it was at issue and awaiting trial. Plaintiff was therefore compelled to retain counsel to defend that action, which resulted in a judgment against her; and the instant action was instituted to recover the amount expended by her in payment of the judgment, and a further sum for legal fees incurred in the defense of the prior suit. Order affirmed, with one bill of $10 costs and disbursements payable by defendant The American Employers' Insurance Company to plaintiff, and one bill of $10 costs and disbursements payable by plaintiff to defendant The New Amsterdam Casualty Company. There is no dispute as to the facts, the only question presented being one of construction of the plain language of the policies, which is a question of law for the court. ( Gearns v. Commercial Cable Co., 293 N.Y. 105, 109; Hartigan v. Casualty Co. of America, 227 N.Y. 175, 178.) In our opinion the accident suffered by plaintiff's patron was one "resulting from [a] personal or professional service or the use of [an] * * * appliance" in connection with the beauty shop operation of shampooing, and consequently the claim was within the coverage of the policy issued by defendant The American Employers' Insurance Company, and was excluded from the coverage of the policy issued by defendant The New Amsterdam Casualty Company. (Cf. Ocean Accident Guar. Corp. v. Herzberg's, Inc., 100 F.2d 171, certiorari denied 306 U.S. 645.)
I do not agree with the majority of the court that there is presented no dispute of material facts. The fundamental question in this case is one of fact, rather than construction of the insurance contracts. That issue is presented by denials of the twenty-eighth paragraph of the amended complaint, by the affirmative defenses and by the affidavits submitted. The lid of the sink fell when the patron was in a position at the sink to have her hair shampooed, and before that operation was commenced. It played no part in the shampooing, but was raised to a vertical position to be out of the way to permit use of the sink. Whether the lid fell because of some defect in the device designed to hold it in a vertical position, or from some negligence on the part of the beauty parlor operator in placing it in that position presents an issue for jury determination. ( Werfel v. Zivnostenska Banka, 287 N.Y. 91, 93; Curry v. Mackenzie, 239 N.Y. 267, 270; Piedmont Hotel Co. v. Nettleton Co., 263 N.Y. 25, 30; Atkinson v. Great Western Ins. Co., 65 N.Y. 531, 543.)